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SCREENING OR DETERMINING WHEN AN ENVIRONMENTAL IMPACT ASSESSMENT (EIA) IS REQUIRED

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. secs. 4321-4370c, requires preparation of an Environmental Impact Statement for (i) any major federal action that (ii) significantly affects the quality of the human environment. 42 U.S.C. sec. 4334(2)(C). Only public federal actions trigger the EIS requirements, but because such public actions include any federal financing, assistance or approval of a project, many "private" projects are covered by NEPA. Major Federal actions also include the adoption of most official policies, formal plans, or programs, as well as the approval of specific projects. 40 C.F.R. sec. 1508.18.

Each federal agency excludes some projects from the EIA process when experience has shown that a certain category of actions do not significantly affect the environment. For all other proposed actions the lead agency prepares a preliminary environmental assessment (EA), which must provide sufficient evidence and analysis to determine whether an EIS is required. 40 C.F.R. sec. 1501.4(b), (c) and 40 C.F.R. sec. 1508.9(a)(1). The EIS should contain a brief discussion of the need for the proposed action, alternatives, and impacts. 40 C.F.R. sec. 1508.9(b). If the agency finds the action will not significantly affect the quality of the human environment, it prepares a finding of no significant impact (FONSI). 40 C.F.R. sec. 1501.4(e). Otherwise the agency begins preparing the EIS. 40 C.F.R. sec. 1501.4(d).

DETERMINING THE SCOPE OF THE EIA PROCESS

The lead agency with jurisdiction over the project determines the scope of the EIS. 40 C.F.R. sec. 1501.7(a)(2). "Scope" is defined as the range of actions, alternatives, and impacts to be considered in an environmental impact statement. 40 C.F.R. sec. 1508.25. In addition, during the scoping phase the lead agency will eliminate insignificant issues or issues covered by prior environmental reviews, allocate assignments among agencies, identify timing issues, and decide whether to set page or time limits. 40 C.F.R sec. 1501.7(a) and (b).

The agency must consider three types of actions: connected actions, cumulative actions, and similar actions. Connected actions are those where: (1) one action automatically triggers another action, (2) an action cannot proceed unless other actions are taken previously or simultaneously, or (3) the actions are interdependent parts of a larger action and depend on the larger action for their justification. Cumulative actions are actions, which, when viewed with other proposed actions, have cumulatively significant impacts. Similar actions are actions that when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.

Three types of alternatives must also be considered in the scoping phase: the proposed action, other reasonable alternatives, and the "no action" alternative.

Three types of impacts should be considered for each alternative: direct, indirect, and cumulative impacts. Direct impacts are caused by the action and occur at the same time and place. 40 C.F.R. sec. 1508.8(a). Indirect impacts are caused by the action but are removed in time or distance. 40 C.F.R. sec. 1508.8(b). Cumulative impacts are defined as impacts that result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. 40 C.F.R. sec. 1508.7.

CONTENTS OF THE EIA DOCUMENT

NEPA requires that the EIS include information on: (1) the environmental impact of the proposed project; (2) any adverse environmental effects which cannot be avoided should the proposal be implemented; (3) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (4) any irreversible and irretrievable commitment of resources necessary for implementing the proposed action. 42 U.S.C. sec. 4332(C). The EIS must also describe alternative to the proposed project and possible measures for mitigating the environmental harms. See also 40 C.F.R. sec. 1502.16.

Alternatives.
NEPA requires that every EIS include a detailed statement on alternatives to the proposed action. 42 U.S.C. sec. 4332(2)(C)(iii). For each alternative, the agency must describe the direct, indirect and cumulative impacts. 40 C.F.R. sec. 1508.25(c). The EIS should present the environmental impacts of the proposal and the alternatives in comparative form, providing clearly defined options from which to choose. The agency must evaluate all reasonable alternatives, including the alternative of no action, and identify the preferred alternative. 40 C.F.R. sec. 1502.14.

Mitigation.
The EIS must also identity appropriate mitigation measures. 40 C.F.R. sec. 1502.14(f). The agency is not required to adopt mitigation measures, but it must explain why any potential mitigation was not adopted. 40 C.F.R. sec. 1505.2(c). The lead agency must ensure the implementation of any mitigation measures upon which the final decision was conditioned. 40 C.F.R. sec. 1505.3.

DECISIONMAKING AND POST-DECISION MONITORING

NEPA regulations provide that "[a]gencies shall integrate the NEPA process with other planning at the earliest possible time, to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts." 40 C.F.R. sec. 1501.2. The regulations also state that the EIS must be prepared early enough to contribute to the decision making process and that the EIS may not be used to rationalize or justify decisions already made. 40 C.F.R. sec. 1502.5.

Agency Consultation.
After the EIS has been completed, NEPA requires that agencies with related jurisdiction or special expertise be allowed to comment on issues in the EIS within their areas of competence. 40 C.F.R. sec. 1503.2. EPA reviews all EISs. 40 C.F.R. sec. 1504.1(b). The lead agency must respond to all comments including comments from the public, by: (1) modifying alternatives including the proposed action; (2) developing and evaluating new alternatives; (3) supplementing, improving, or modifying its analysis; (4) making factual corrections; and/or (5) explaining why the comments do not warrant further response. 40 C.F.R. sec. 1503.4(a). If a federal agency, after attempting to resolve its concerns about the EIS with the lead agency, remains convinced that an aspect of the EIS is "unsatisfactory from the standpoint of public health or welfare or environmental quality" the agency should refer the matter to the Council on Environmental Quality (CEQ). 40 C.F.R. sec. 1504.1. The CEQ may mediate between the lead and referring agencies and/or submit its own recommendations to the President for action. 40 C.F.R. sec. 1504.3.

Record of Decision.
After the period for public comment and referral of any disagreements to the CEQ has expired, the agency that prepared the EIS decides whether to proceed with the action. 40 C.F.R. sec. 1506.10. A record of decision (ROD) must be prepared and made public at the time of the decision. No decision on the proposed action may be taken until 30 days after public notification that the EIS has been completed. 40 C.F.R. sec. 1506.10(b)(2). The ROD must state the basis for the agency's decision, identify all alternatives that were considered, specify the environmentally preferable alternative, and explain any requirements for avoiding or mitigating environmental harm. The agency is not required to select the environmentally preferable alternative, but it must explain its reasons for selecting a less environmentally protective alternative. 40 C.F.R. sec. 1505.2.

Post-decision Monitoring.
While NEPA generally does not require post-decision monitoring, it does require a "monitoring and enforcement program" for any required mitigation. 40 C.F.R. sec. 1505.2(c). Mitigation measures included in the ROD must be implemented by the project proponent. Agencies must make the results of relevant mitigation monitoring available to the public. 40 C.F.R. sec. 1505.3.

fromSummary of Enviromental Law in the United States - CEC

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